Can Both Sides of the Sprawl Debate Find Common Ground on Property Rights?

One of the great
myths spread by opponents of suburban development is that the
land-use patterns we have today are the result of free-market
forces, greedy developers, and unregulated property rights.
Contrary to urban legend, gaudy strip malls and tacky subdivisions
are more often a consequence of over half a century of zoning and
land-use planning conducted under the guidance of professional
planners in cooperation with elected officials. What repel us today
are not the unintended consequences of free enterprise, but
planning concepts from the 1960s that have dropped out of
fashion.

Having failed us
once, planners are asking for a second chance-along with more
regulatory power than ever before-to impose their aesthetic
sensibilities on the rest of us, the philistine masses. Instead of
letting the planners have their way, communities should work to
restore and strengthen individual property rights. Part of this is
giving property owners and builders the freedom to construct
housing that people want, not what the planners want to impose on
them.

Erosion of Rights

Until the 1920s,
property rights in America were seen to be nearly inviolable. The
Takings Clause of the Fifth Amendment to the U.S. Constitution
states, "nor shall property be taken for public use without just
compensation." This was considered the literal law of the land.
(The Fourteenth Amendment extended the Fifth's protection to
actions by the states.) Property rights advocates argue that the
Takings Clause also covers "regulatory takings" that limit the
property's use (and thus diminish its value), such as zoning
restrictions. If so, either regulatory takings would be prohibited
or, at the very least, the government would have to compensate
property owners for land-use regulations that reduce the value of
their holdings.

The courts,
however, have not held this view. Their rejection of the idea of
regulatory takings can be traced back to several decisions early in
the 20th century. One of the most notable, or infamous, is the
Supreme Court's 1926 decision in Village of Euclid v. Amber
Realty Co., which upheld comprehensive zoning and laid the
foundation for many of today's limitations on individual property
rights by sanctioning restrictions on land use.

At around the same
time, the executive branch of the federal government was working to
undermine property rights. During the Harding and Coolidge
Administrations, the federal government became an active proponent
of zoning and land-use planning. Under the direction of its
Secretary, Herbert Hoover, the Department of Commerce created
federal advisory committees on zoning in 1921 and published A
Standard State Zoning Enabling Act in 1924, followed by A
Standard City Planning Enabling Act in 1927. These model laws
helped states and cities to create their own planning regimes.

The Smart Growth
Movement

Despite the rapid
spread of zoning in the 20th century, local officials and zoning
boards still tended to respect the rights of landowners, often
granting reasonable requests for variances from master plans. This
careful balance between freedom and regulation began to tilt away
from property owners in the 1990s, when the Smart Growth and New
Urbanism movements rose to prominence. The activist wings of these
movements gained traction by vilifying the suburbs and their
residents. In response, many communities altered their zoning laws
to slow the pace of suburbanization. The consequence has been to
encourage leapfrog development-in what we now call exurbs-and even
more sprawl.

It is revealing to
look at the list of model communities that advocates of smart
growth hold out as worthy of emulation. The Sierra Club conducts
anti-sprawl tours in the Washington, D.C., area, and its guides
highlight the beautiful neighborhoods of Old Town Alexandria in
Virginia and Georgetown and Capitol Hill in Washington. Elsewhere
in the country, anti-sprawl activists hold up Charleston and
Savannah, both elegant cities, as role models, along with Society
Hill in Philadelphia, Oakleigh in Mobile, the Garden District in
New Orleans, and Beacon Hill in Boston.

These communities
share a common trait besides their exquisite beauty and historical
status: All were built before the advent of zoning, government
planning, building codes, building inspections, building permits,
and restrictive covenants governing the color of downspouts and
window shutters. In short, they represent the spontaneous order of
a cowboy capitalism long since regulated out of existence. Indeed,
no enterprising developer could construct any of these communities
today; the zoning ordinances of most of America's counties and
towns would stop him flat. Typical zoning provisions establish
minimum lot sizes, minimum front and side setbacks, and minimum
street widths. They make driveways and garages mandatory and
prohibit mixed commercial and residential development. The lauded
neighborhoods of the past, held up as examples of an ideal,
wouldn't measure up to today's zoning. Building a neighborhood like
that today requires local zoning and planning boards to grant a
myriad of variances from existing rules. The boards, however, are
seldom willing, in large part because citizens oppose higher
density housing and the congestion it creates.

That zoning and
planning laws effectively prohibit the construction of "ideal"
neighborhoods reveals one of the ironies of the current debate on
suburban land use: Advocates of smart growth and new urbanism are
among the major casualties of land-use regulations that diminish
property rights, despite their large role in encouraging such
regulation.

Criticizing
typical suburban developments with single-family detached houses on
quarter-acre lots, smart growth advocates encourage higher-density
development (smaller lot sizes) to conserve land and other
resources; increased "walkability" and transit use to discourage
auto use; greater social interaction among neighbors; and a mix of
commercial and residential establishments. While some in the smart
growth movement consider these high-density developments a
lifestyle choice that should compete with typical suburban
subdivisions for buyers, the movement's activist wing would mandate
high-density living. The activists would prohibit new lower-density
suburbs because of the social costs that the activists say they
impose on society.

These more extreme
elements of the smart growth movement rely on harsh criticisms of
suburban subdivisions to promote their alternative. In the process,
they level many outlandish charges against suburbs and
suburbanites-a sort-of national vilification. Typical of the abuse
heaped on the inhabitants of cul-de-sacs is a recent
Atlantic article by new urbanist James Howard Kunstler:

When we drive
around and look at all this cartoon architecture and other junk
that we've smeared all over the landscape, we register it as
ugliness. This ugliness is the surface expression of deeper
problems-problems that relate to the issue of our national
character.

Not to be outdone,
former National Governors Association executive Joel Hirshhorn
argues that sprawl kills:

Know this:
Sprawl is killing people, some 300,000 premature deaths annually
because of the sprawl sedentary lifestyle, and it is killing our
natural environment, scenic vistas, biodiversity, rural towns, and
much more. The pursuit of happiness by the few profiting from
sprawl land development is killing the future pursuit of happiness
by the many. Spread this idea virus: sprawl kills.

Movement Hijacked by
the NIMBYs

But these efforts
to shame American consumers into high-density living have badly
backfired. The campaign was cleverly hijacked by the suburban-based
Not-In-My-Back-Yard, or NIMBY, anti-growth movement. Posing
as believers in the lofty goals of new urbanism and environmental
conservation, the NIMBYs are working hard to further diminish
property rights with even more restrictive land use regulations in
thousands of communities. As one planner puts it:

If a
community or region refuses to grow, the result may be higher
prices, economic displacement and hardship, and dangerous crowded
housing in exchange for keeping a desirable quality of life for the
"already landed" middle and upper income groups. If the local
voters are willing to pay this price, why should planners try to
prevent it?

One of NIMBYs'
major tools to deter growth and exclude less affluent residents is
changing zoning to reduce densities and raise housing costs. Among
the more common measures is "down zoning," by which raw land
previously zoned for, say, five houses per acre is rezoned to allow
only one house per acre-or even one house per five, 10, or 20 acres
in some communities. Additional regulations may require greenbelts
and mandatory set-asides for conservation and prohibit building
homes on land currently zoned for agriculture. Such rezoning also
precludes, or greatly limits, the construction of apartments,
townhouses, small-lot, cluster-type developments, and other
high-density arrangements. In contrast to the country's average lot
size of about one-third of an acre, today's growth control
strategies require minimum lot sizes of five, 10, or 20
acres-beyond what many homebuyers want or can afford.

The consequence is
more sprawl-sprawl that has little to do with the free market.
Larger lots lead to fewer houses (and people) per square mile,
which means that more space is needed to house a given population.
This spreading out, in turn, leads to traffic congestion from more
long-distance commuters, more expensive housing, and a diminished
quality of life as commuters exchange leisure time for more
affordable housing and longer commutes. The biggest losers under
today's restrictive land-use regulations, aside from
moderate-income households who find themselves priced out of the
market, are new urbanists, whose developments have become nearly
impossible to build.

A Backlash Emerges

These costs and
inconveniences are burdensome enough that well-organized resistance
to today's restrictive zoning practices is beginning to form. This
resistance is coming from all points of the political spectrum,
including some new urbanists and particularly planners and
architects who consider current zoning practices to be one of the
greatest obstacles to the development of their ideal communities.
If it continues to grow, this resistance may have the potential to
reverse the trend toward greater land regulation.

Further fueling
the resistance is resentment of the growing abuse of eminent domain
for purposes of "economic development." Like anti-sprawl measures,
the government's power to force the sale of land with eminent
domain is increasingly being used to displace the poor and replace
them with richer people who pay higher taxes and need fewer
services.

Is the tide
turning? Perhaps so. In 2004, Oregon voters endorsed a referendum
to hobble the state's world-renowned "growth boundary" experiment,
which prohibits development outside of specially zoned areas. The
referendum requires Oregon municipalities to compensate those who
own land outside of the boundaries or let them develop their land
as they see fit, boundaries notwithstanding. In effect, Oregon law
now makes no distinction between a regulatory taking and an eminent
domain taking, and the citizens of the state have had some of their
lost property rights restored.

More states and
municipalities may follow suit, but their efforts are no substitute
for action by the U.S. Congress to clarify and strengthen property
rights in federal law. With property rights enshrined in the
Constitution and explicitly imposed on the states, it is incumbent
upon Congress to ensure that the courts-both federal and
state-uphold them.

Ronald D. Utt,
Ph.D., is Herbert and Joyce Morgan Senior Research Fellow
in the Thomas A. Roe Institute for Economic Policy Studies at The
Heritage Foundation.

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